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Federal Courts Can Review Motions to Reopen Immigration Cases – Follow Up on Kucana v. Holder

Feb 1, 2010 | federal court, motions to reopen

In our November 3, 2009 post, we informed you about the case of Kucana v. Holder (08-911), in which the U.S. Supreme Court heard oral arguments on November 10, 2009.  The issue was whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals (“BIA”).  Section 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review any action of the attorney general “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.”  Motions to reopen are specified as discretionary in the regulations (Title 8 of the Code of Federal Regulations), but not the statute (the Immigration and Nationality Act).

The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as “discretionary” under the regulations.

On January 20, 2010, the Supreme Court rendered a unanimous decision in the case, and held that the 8 U.S.C. § 1252(a)(2)(B)(ii) only applies to the Attorney General’s (i.e. the BIA’s) decisions that are made discretionary by the statute (the Immigration and Nationality Act), not to determinations that are made discretionary by the Attorney General himself through regulations (i.e. Title 8 of the Code of Federal Regulations).

While the Court did not specifically resolve other issues, such as whether its opinion extends to reviews of discretionary relief (such as adjustment of status), such that a review of an underlying motion to reopen for that discretionary relief would be precluded by the statute, this is a significant development in current immigration laws, because it signals a departure from the previously foreclosed opportunity to challenge a denial of a motion to reopen, which, by itself, was typically considered “discretionary” and ancillary.

Under current immigration laws and regulations, only one motion to reopen may be filed and it must be filed within 90 days of the Board of Immigration Appeals’ decision dismissing an appeal.

Ruchi Thaker